El Paso Cnty. v. Vasquez

• Decision Date: 05 May 2016
• Docket Number: No. 08–15–00086–CV,08–15–00086–CV
• Citation: 508 S.W.3d 626
• Parties: EL PASO COUNTY, Texas, Appellant, v. Mary Lou VASQUEZ, Appellee.
• Court: Texas Court of Appeals

508 S.W.3d 626

EL PASO COUNTY, Texas, Appellant,

v.Mary Lou VASQUEZ, Appellee.

No. 08–15–00086–CV

Court of Appeals of Texas, El Paso.

May 5, 2016

Joe Rosales, Rosales Law Firm, El Paso, TX, for Appellee.

Jose A. Howard–Gonzalez, Kemp Smith LLP, El Paso, TX, for Appellant.

Before McClure, C.J., Rodriguez, and Hughes, JJ.

OPINION

ANN CRAWFORD McCLURE, Chief Justice

This is an accelerated interlocutory appeal from a trial court order denying El Paso County's plea to the jurisdiction. We reverse and render in part and remand the remainder.

FACTUAL SUMMARY

El Paso County hired Mary Lou Vasquez on August 20, 2001. For the next eleven years, Vasquez worked several clerical and secretarial positions, but primarily maintained her position as a Collection Specialist with the County's Bond Forfeiture Unit.

On September 3, 2012, Vasquez suffered a heart attack

at home and was immediately taken to the emergency room at Del Sol Medical Center. She was 54 years old at the time. About a week later, Vasquez had quintuple bypass heart surgery. Because of her heart attack and subsequent surgery, Vasquez took an employer-approved leave of absence from work. While on leave, her supervisor, Ralph Girvin, directed her to communicate with an individual named Lulu, a secretary at the County Attorney's office, about the status of her medical leave of absence. Vasquez regularly reported to Lulu with updates and the progress of her treatment and status. While still at Del Sol recovering from surgery, Vasquez acquired a hospital-based infection, tuberculosis

. TB is caused by bacteria that affects the lungs. It is a highly contagious communicable disease which is spread from person to person through the air and has a history of engendering fear of the disease and those with it. This fear often leads to stigmatization of patients who have recovered from a TB infection. Vasquez became extremely ill and was sequestered in her home for an additional two weeks. As a result of these medical complications, Vasquez needed to take additional leave time from work, which the County granted. Vasquez eventually recovered and both her healthcare provider and government health officials released her to return to work with minimal restrictions on January 7, 2013.

When Vasquez returned to work, she was able to perform her job as a Collection Specialist with reasonable accommodation. Nevertheless, she was involuntarily transferred to a new position in the "Hot Checks" Unit of the County Attorney's office. According to Vasquez, one of the assistant county attorneys informed her that she was not permitted to return to her position as Collection Specialist in the Bond Forfeiture Unit because one or more employees had threatened to either walk off the job if she returned to work or sue the County if they acquired TB. Vasquez also discovered that many of her co-workers and managers were aware that she had acquired TB. Vasquez did not disclose this information to anyone except when she was required to give periodic reports on her status and progress during her leave of absence. According to Vasquez, once her co-workers discovered she had acquired TB, they treated her differently and shunned her. Vasquez also alleged in her petition that after being transferred to the Hot Checks Unit, her supervisor, Ralph Girvin, threatened and intimidated her. Vasquez's husband filed a complaint regarding Girvin's conduct with the County Attorney's office. In February 2013, the County recorded a portion of a telephone conversation between Vasquez and an individual who had allegedly written a hot check. After investigating the call, the County recommended she be discharged from her new position because she allegedly violated certain practices and procedures during the phone conversation. On February 20, 2013, the County informed Vasquez that she was terminated from her employment. However, the County gave her the option of resignation in lieu of termination. Vasquez elected to resign and signed a resignation letter prepared by the County.

The Discrimination Charge

On March 12, 2013, Vasquez filed a charge of discrimination ("the original charge") in which she alleged the County discriminated against her based on age and disability. She filed it with the Equal Employment Opportunity Commission (EEOC) and the Texas Workforce Commission Civil Rights Division (TWC) received a copy. In the original charge, Vasquez checked the boxes for "age" and "disability" discrimination and included the following factual "particulars":

I. On or around February 20, 2013 I was discharged from my position of Collection Specialist by Ralph Girvin–Supervisor, JoAnne Bernal–County Attorney, and Joe Gonzalez–Supervisory Attorney.

II. No suitable reason given. I was told that my employment was terminated because I did not follow Hot Check Procedures.

III. I believe that I was discriminated against because of my age, 54, and my disability in the manner described above in violation of the Age Discrimination in Employment Act of 1967, ADEA and in violation of Title I of the Americans with Disabilities Act of 1990, as amended (ADAAA).

Vasquez signed the original charge under oath. In July 2013, Vasquez filed an amended charge with the EEOC, as permitted by the Texas Labor Code. She wanted to add a claim for retaliation and for disclosure of confidential health information. The amended charge was her original charge with the word "amended" written at the top. She also checked the "retaliation" box and signed her initials next to the newly checked box. According to Vasquez, the EEOC additionally instructed her to attach a statement to the amended charge describing her retaliation claim. That statement is entitled, "Amendment to EEOC Charge." Vasquez signed the statement, but did not do so under oath. However, she contends that when she initialed the retaliation box and attached her statement, it was her intent to reaffirm her signature that already appeared on the original charge. Specifically, she asserts that she reaffirmed her oath that the amendment she submitted was true, correct, and accurate. On May 30, 2014, the EEOC concluded its investigation into Vasquez's charge and issued its Dismissal and Notice of Rights.

The Lawsuit

On June 10, 2014, Vasquez filed her original petition alleging three claims: (1) the County discriminated against her based on an actual disability and being "regarded as" disabled; (2) she was retaliated against for "taking time off for medical treatment, seeking a reasonable accommodation for her disability and for complaining about mistreatment by her supervisor"; and (3) the County violated Chapter 21 when it disclosed her confidential health information.

On October 6, 2014, the County filed a motion to dismiss under Rule 91a and a plea to the jurisdiction, arguing that the trial court lacked jurisdiction over Vasquez's entire lawsuit. The County alleged that the retaliation claim was barred because she failed to raise it in her original charge and failed to submit her amended charge to the EEOC "under oath," as required by Chapter 21. In response, Vasquez filed an amended petition containing the same causes of action asserted in her original petition and added a claim for age discrimination under state law. Vasquez asserted that she had recently submitted an affidavit to the EEOC, dated October 30, 2014, in support of her amended charge and the statement attached to it describing her retaliation claim. In her affidavit, she averred:

I swear and affirm that the attached amendment to my EEOC charge was submitted under oath at the time I submitted it to the EEOC in July 2013. I reaffirmed my prior oath when I amended my EEOC charge.

I am, however, re-affirming my oath at this time that the amendment to my EEOC charge is true, correct, and accurate and based upon personal knowledge. I therefore swear and affirm, under penalty of perjury, that the attached amendment to my EEOC charge is true, correct, and accurate and based upon personal knowledge.

The County then filed an amended motion to dismiss and amended plea to the jurisdiction. The amended plea contained the same arguments as the original plea, but added the arguments that Vasquez failed to exhaust her administrative remedies as to her "regarded as" disabled claim and her claim that she was denied a reasonable accommodation. On February 26, 2015, the trial court denied the amended plea and this interlocutory appeal follows.

ISSUES FOR REVIEW

We will address the County's arguments in the following order: (1) Issues One and Two, pertaining to whether Vasquez exhausted her remedies concerning her retaliation claim and "regarded as" disabled claim; (2) Issues Three and Four, concerning Vasquez's actual disability pleadings; and (3) Issue Five, pertaining to whether Chapter 21 creates a cause of action for the disclosure of confidential health information. Finally, it is not necessary for us to address the County's third issue—whether Vasquez exhausted her administrative remedies and pled facts sufficient to state a claim that she was denied a reasonable accommodation—because in her brief she concedes that she cannot assert such a claim under the statute.

PLEA TO THE JURISDICTION

A plea to the jurisdiction is a dilatory plea by which a party challenges the court's authority to determine the subject matter of a cause of action. Bland Independent School Dist. v. Blue, 34 S.W.3d 547, 554 (Tex.2000) ; see Texas Department of Transp. v. Jones, 8 S.W.3d 636, 637–38 (Tex.1999). A governmental unit's sovereign immunity deprives a trial court of subject matter jurisdiction. Texas Dept. of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225–26 (Tex.2004) ; Tirado v. City of El Paso, 361 S.W.3d 191, 194 (Tex.App.—El Paso 2012, no pet.) ; see Prairie View A & M Univ. v. Chatha, 381 S.W.3d 500, 512 (Tex.2012) ("Sovereign immunity bars suits against the state and its entities, and this immunity remains intact unless surrendered in express and unequivocal terms by the...